Darla W.,1 Complainant,v.J. Mark McWatters, Chairman, National Credit Union Administration, Agency.

Equal Employment Opportunity Commission

Nov 15, 2018

0120171230 (E.E.O.C. Nov. 15, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Darla W.,1
Complainant,

v.

J. Mark McWatters,
Chairman,
National Credit Union Administration,
Agency.

Appeal No. 0120171230

Hearing No. 410-2015-00213X

Agency No. NCUA-14-05

DECISION

On February 16, 2017, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
January 10, 2017, final order concerning her equal employment opportunity (EEO) complaint
alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title
VII), as amended, 42 U.S.C. § 2000e et seq. and the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission
AFFIRMS the Agency’s final order.

ISSUES PRESENTED

The issues presented are: (1) whether the Equal Employment Opportunity Commission
Administrative Judge (AJ) properly issued a summary judgment decision; (2) whether the AJ
applied the proper legal standard to Complainant’s hostile work environment claim; and (3)
whether the preponderance of the evidence in the record establishes that Complainant was
subjected to discrimination based on race, sex, age, and/or reprisal.

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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BACKGROUND

At the time of events giving rise to this complaint, Complainant, a 55-year-old African-American
female, worked as a Credit Union Examiner, CU-0580-11, at the Agency’s Region III, Examiner
Group E facility in Charlotte, North Carolina. Complainant began working for the Agency on
February 13, 2011. Since September 2011, Complainant’s first-line supervisor was a Supervisory
Examiner (S1, 51-year-old Caucasian male).

Complainant lived in Miami, Florida before taking the job in North Carolina. According to
Complainant, on January 4, 2013, she applied for a hardship transfer to return to Florida because
she still owned a condo there. On November 20, 2013, Complainant emailed a Supervisory
Examiner (S2, 43-year-old Caucasian female) regarding an opening in Ft. Lauderdale, Florida.
The record contains a November 20, 2013, response from S2, which states that she needs someone
fluent in Spanish because the Ft. Lauderdale group regularly conducts examinations in Puerto
Rico. Complainant responded that she did not speak Spanish, and S2 selected a candidate who was
fluent in Spanish for the vacancy. Complainant’s placement on the hardship transfer list expired
at the end of 2013. Complainant stated that by January 2014 she had sold her condo in Florida, so
she added her name to the voluntary transfer list on January 24, 2014. In February 2014, a vacancy
opened in Orlando, Florida. According to Complainant, she learned that she was not selected for
the Orlando vacancy because someone on the hardship transfer list had priority. In March 2014, a
position became available in Ft. Lauderdale or Miami. Complainant stated that the position
description did not state that fluency in Spanish was required but that S2 told her that she would
be selecting a Spanish speaker. The vacancy announcement states that although Spanish
proficiency is not required, it is highly desirable for the position. S1 stated that he had no
involvement with Complainant not being afforded a transfer.

According to Complainant, there are nine core trainings that Credit Union Examiners are required
to complete in their second through fifth years of employment. Complainant averred that S1 did
not work with her to make sure that she was making progress to meet these core training
requirements. Complainant stated that S1 assisted other employees in developing their Individual
Development Plans (IDP) but that he approved her IDP based on the courses she indicated that she
wanted to take without telling her that she should focus on core training. Complainant alleged that
she emailed S1 to tell him that she was falling behind but that S1 never responded. The record
contains a December 9, 2013, email from Complainant to S1 requesting to take additional core
classes because she was “way behind with training.” Report of Investigation (ROI) at 189. S1
stated that employees are responsible for their own training and that he approved all of
Complainant’s training requests. According to S1, Complainant is on target to complete all of her
core training requirements.

Complainant stated that she requested one day of sick leave for May 27, 2014, and that S1
requested a doctor’s note. According to Complainant, S1 never followed through with the request
for a doctor’s note. S1 stated that he asked for a doctor’s note because he suspected Complainant
of possibly abusing her leave because on one onsite examination in May 2014 she was
incommunicado for three or four days. Complainant averred that on May 30, 2014, S1 sent an
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email to the group that stated that leave needed to be requested in advance and included a section
from the collective bargaining agreement (CBA) regarding leave abuse.

Complainant averred that, since she contacted an EEO Counselor, S1 has been reviewing her work
under a microscope. Complainant alleged that S1 tears her work apart. S1 averred that he reviews
all of his subordinates’ work in the same manner. S1 stated that Complainant makes mistakes that
indicate that she does not grasp important concepts. According to Complainant, when she makes
a mistake, S1 will send out an email to the group about not making that type of error. S1 stated
that sometimes he will send out an email about errors made by an individual, scrubbed of
identifying information, to the group in order to avoid repetitive errors. Complainant averred that,
although these emails do not mention her name, her coworkers know that the emails reference her
work. Complainant stated that S1 also frequently makes unannounced site visits when she is
working at credit unions. According to Complainant, on June 20, 2014, S1 sent an email to the
group that stated that he would be starting to make unannounced visits. Complainant stated that he
had already done four or five unannounced visits to her onsite jobs before sending the group email.
S1 stated that he has done unannounced site visits for all of his subordinates.

Complainant averred that S1 never made any derogatory remarks about her race, sex, age, or EEO
activity, but she stated that S1 called a Credit Union Examiner (C1, 27-year-old African-American
male) “Sambo.” According to Complainant, she was not present when this remark was made. C1
stated that S1 did call him Sambo and that, “I told him that the statement was inappropriate. I don’t
think [S1] knew what it meant. He did apologize and was embarrassed.” ROI at 349. S1 stated that
he used “Sambo” as a nickname for C1 because his name was “Sam.” According to S1, he did not
intend to offend C1 or reference his race.

In 2014 and 2015, Complainant was the assigned Examiner-in-Charge (EIC) for the examination
of a credit union (CU-1). Complainant informed S1 that CU-1’s quarterly data showed an increase
in the rate of loan growth, and S1 told Complainant that the increase was a red flag that could mean
that CU-1 was offering bonuses, incentives, or kickbacks. According to S1, he told Complainant
to ask CU-1 management whether such an incentive program existed. On May 11, 2015, the
President of CU-1 emailed S1 to complain about the manner in which Complainant broached this
subject. According to the CU-1 President, Complainant did not express concern about an incentive
program to the board, the supervisory committee, or herself, but instead she asked the Operations
Manager. The CU-1 President stated that this was unprofessional, as though Complainant was
trying to pit the Operations Manager against the President. According to Complainant, in May
2015, S1 excluded her from a meeting with CU-1 management. On July 6, 2015, S1 emailed
Complainant and told her that she needed to have another examiner present in all meetings with
CU-1 staff. Complainant complained to her union representative, who responded to Complainant
that S1’s instruction was reasonable and that she should comply.

Complainant alleged that S1 prompted credit union employees to complain about her. On February
6, 2015, S1 received a note from the Manager of a credit union (CU-2) complaining about an
“unprofessional” comment Complainant made about a past-due loan. According to the Manager,
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Complainant implied that CU-2 should violate its policy on repossessing the car and that CU-2’s
reluctance to do so was race-based.

S1 rated Complainant as a “Fully Successful” grade CU-7 Examiner in fiscal year 2011, as a “Fully
Successful” grade CU-9 Examiner in 2012, and as “Highly Successful” for 2013. According to the
record, Complainant was promoted to CU-11 nine months into fiscal year 2013 on June 16, 2013.
S1 rated Complainant as a “Fully Successful” CU-11 Examiner in fiscal year 2014. According to
S1’s explanation of the fiscal year 2014 rating, Complainant needed to expand the breadth of her
knowledge, her ability to spot issues, her accuracy, and her reliance on supervisory oversight.

Complainant contacted an EEO Counselor to initiate the instant complaint on April 15, 2014. On
June 19, 2014, Complainant filed an EEO complaint, which she subsequently amended, alleging
that the Agency discriminated against her on the bases of race (African-American), sex (female),
age (55), and reprisal for prior protected EEO activity (contacting an EEO Counselor to initiate
the instant complaint) when:

1. On April 2, 2014, her hardship transfer request to Miami or Fort Lauderdale,
Florida was denied;
2. Since 2012, her supervisor did not provide her with the opportunity to complete
training requirements;
3. She has been subjected to a hostile work environment, as evidenced by the
following:
a. S1 requested a doctor’s note for a one-day absence;
b. Her work was reviewed under a microscope;
c. She received condescending emails from S1;
d. She was made to feel as though she was a target and S1 was out to get her;
e. S1 made several unannounced visits to her work site, where he subjected her to
offensive and intimidating behavior and interfered with her work performance;
f. S1 instigated credit union personnel to file complaints against her;
g. S1 sent staff emails notifying Complainant’s coworkers of her errors;
h. S1 lowered her performance rating;
i. S1 excluded her from a meeting at a credit union; and
j. S1 instructed her to have a witness present when she interacted with
management at a particular credit union.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the report
of investigation and notice of her right to request a hearing before an EEOC AJ. Complainant
timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted
the Agency’s December 3, 2015, motion for summary judgment and issued a summary judgment
decision on November 18, 2016.

In the decision, the AJ found that the Agency provided legitimate, nondiscriminatory reasons for
its actions and that Complainant failed to establish by the preponderance of the evidence in the
record that the proffered reasons were pretextual.
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The AJ also found that Complainant failed to establish that she was subjected to a hostile work
environment because there was no nexus between any protected basis and the alleged harassment
and because the alleged harassment was insufficiently severe or pervasive.

The Agency subsequently issued a final order fully implementing the AJ’s finding that
Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant
appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the AJ applied the wrong legal standard to her hostile work
environment claim. According to Complainant, instead of determining whether the alleged
harassment was severe or pervasive, the AJ should have determined whether the alleged
harassment would dissuade a reasonable employee from engaging in protected EEO activity.
Complainant also contends that the AJ improperly fragmented her harassment allegations instead
of considering them together as a hostile work environment claim. Complainant argues that the AJ
improperly acted as a finder of fact by crediting the Agency’s assertions and disregarding evidence
that was favorable to Complainant. Finally, Complainant contends that she established a nexus
between her protected EEO activity and the alleged harassment. Complainant requests that the
matter be remanded for a hearing on the merits.

In response to Complainant’s appeal, the Agency contends that the AJ applied the correct legal
standard to Complainant’s hostile work environment claim. The Agency also notes that
fragmentation is an issue when agencies dismiss complaints on procedural grounds and not at the
summary judgment stage. According to the Agency, the AJ properly found that there were no
genuine issues of material fact. The Agency requests that its final order be affirmed.

ANALYSIS AND FINDINGS

In rendering this appellate decision we must scrutinize the AJ’s legal and factual conclusions, and
the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a
“decision on an appeal from an Agency’s final action shall be based on a de novo review . . .”);
see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO
MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s
determination to issue a summary judgment decision, and the decision itself, will both be reviewed
de novo). This essentially means that we should look at this case with fresh eyes. In other words,
we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual
conclusions and legal analysis – including on the ultimate fact of whether intentional
discrimination occurred, and on the legal issue of whether any federal employment discrimination
statute was violated. See id. at Chapter 9, § VI.A. (explaining that the de novo standard of review
“requires that the Commission examine the record without regard to the factual and legal
determinations of the previous decision maker,” and that EEOC “review the documents,
statements, and testimony of record, including any timely and relevant submissions of the parties,
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and . . . issue its decision based on the Commission’s own assessment of the record and its
interpretation of the law”).

Summary Judgment

We must determine whether it was appropriate for the AJ to have issued a summary judgment
decision on this record. The Commission’s regulations allow an AJ to issue a summary judgment
decision when he or she finds that there is no genuine issue of material fact. 29 C.F.R.
§ 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in
Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary
judgment is appropriate where a court determines that, given the substantive legal and evidentiary
standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s
function is not to weigh the evidence but rather to determine whether there are genuine issues for
trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment
stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. An
issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of
the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip.
Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the
outcome of the case.

If a case can only be resolved by weighing conflicting evidence, issuing a summary judgment
decision is not appropriate. In the context of an administrative proceeding, an AJ may properly
consider issuing a summary judgment decision only upon a determination that the record has been
adequately developed for summary disposition. See Petty v. Dep’t of Def., EEOC Appeal No.
01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding a
hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the
proposal to issue a summary judgment decision, (2) a comprehensive statement of the allegedly
undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to
engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56
itself precludes summary judgment “where the [party opposing summary judgment] has not had
the opportunity to discover information that is essential to his opposition.” Anderson, 477 U.S. at
250. In the hearing context, this means that the administrative judge must enable the parties to
engage in the amount of discovery necessary to properly respond to any motion for summary
judgment. Cf. 29 C.F.R. § 1614.109(g)(2) (suggesting that an administrative judge could order
discovery, if necessary, after receiving an opposition to a motion for summary judgment).

Here, we find that the AJ properly granted the Agency’s motion for summary judgment because
the record is sufficiently developed for summary adjudication and because no genuine issue of
material fact exists. Upon review, we find that the AJ did not improperly weigh the evidence as
alleged by Complainant.

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Disparate Treatment

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he
or she was subjected to an adverse employment action under circumstances that would support an
inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a
prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411
U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a legitimate,
nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248,
253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence,
that the Agency’s explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530
U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

Complainant alleged that she was subjected to discrimination when she was not granted a hardship
or a voluntary transfer to Florida. The Agency has provided a legitimate, nondiscriminatory reason
for not selecting Complainant for the Ft. Lauderdale and Miami vacancies, which was that
Complainant did not speak Spanish. Although Spanish was not a requirement for the Examiner
position, it was considered a plus factor because the Examiner would be tasked with examinations
in Puerto Rico. The Agency’s legitimate, nondiscriminatory reason for not selecting Complainant
for the 2014 Orlando vacancy was that other employees on the hardship transfer list had priority
over her application. The preponderance of the evidence in the record does not establish that these
legitimate, nondiscriminatory reasons were a pretext designed to mask discriminatory animus.

Complainant also alleged that she was discriminated against when S1 did not give her the
opportunity to complete her training requirements. Here, we find that Complainant has failed to
establish a prima facie case because S1 approved all of Complainant’s training requests and
because she was on track to complete her core training requirements. Therefore, Complainant has
not established that she was subjected to an adverse action.

Complainant alleged discrimination with respect to S1 requesting a doctor’s note for a one-day
absence. Again, we find that Complainant has not established a prima facie case with respect to
this claim because S1 did not follow through on his request. Accordingly, the preponderance of
the evidence in the record does not establish that Complainant was subjected to an adverse action.

Complainant alleged that she was subjected to discrimination when S1 subjected her work to
excessive scrutiny and emailed the group about her mistakes. Although S1 denied excessively
scrutinizing Complainant’s work, he averred that Complainant did make mistakes and that
sometimes he would alert the group to avoid repetitive mistakes across his subordinates’ work.
We find that Complainant failed to establish that these legitimate, nondiscriminatory reasons are
pretextual.

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Complainant also alleged that she was discriminated against when S1 rated her as Fully Successful
for fiscal year 2014. The Agency’s legitimate, nondiscriminatory explanation for the rating was
that Complainant needed to improve the breadth of her knowledge, her ability to spot issues, her
accuracy, and her reliance on supervisory oversight. Although Complainant had been rated as
Highly Successful the prior fiscal year, we note that Complainant was under CU-9 standards for
the majority of fiscal year 2013. Complainant has not established that the Agency’s proffered
legitimate, nondiscriminatory reason is a pretext for discrimination.

Finally, Complainant alleged discrimination with respect to S1 excluding her from a meeting with
credit union management and telling her that she could not meet with credit union staff without
another Examiner present. The Agency’s legitimate, nondiscriminatory reason is that S1 had just
received a complaint about Complainant’s behavior from the president of this credit union, and we
find that Complainant has failed to establish that this legitimate, nondiscriminatory reason is
pretextual.

Hostile Work Environment

To establish a claim of harassment a complainant must show that: (1) she belongs to a statutorily
protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical
conduct involving the protected class; (3) the harassment complained of was based on her
statutorily protected class; (4) the harassment affected a term or condition of employment and/or
had the purpose or effect of unreasonably interfering with the work environment and/or creating
an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing
liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further,
the incidents must have been “sufficiently severe or pervasive to alter the conditions of
[complainant's] employment and create an abusive working environment.” Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993). The harasser’s conduct should be evaluated from the
objective viewpoint of a reasonable person in the victim’s circumstances. Enforcement Guidance
on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994).

As a preliminary matter, we find that the AJ properly applied the correct legal standard. The
statutory anti-retaliation provisions prohibit any adverse treatment that is based on a retaliatory
motive and is reasonably likely to deter a reasonable employee from engaging in protected activity.
Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). Given the importance of
maintaining “unfettered access to [the] statutory remedial mechanisms” in the anti-retaliation
provisions in Title VII, our cases have found that a broad range of actions can fall into this
category. Burlington N. and Santa Fe Ry. Co., 548 U.S. at 64 quoting Robinson v. Shell Oil Co.,
519 U.S. 337, 346 (1997). For example, we have held that a supervisor threatening an employee
by saying “What goes around, comes around” when discussing an EEO complaint constitutes an
adverse action. Vincent v. U.S. Postal Serv., EEOC Appeal No. 0120072908 (Aug. 3, 2009),
request for recon. denied, EEOC Request No. 0520090654 (Dec. 16, 2010).

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We have also found that a supervisor attempting to counsel an employee against pursuing an EEO
complaint “as a friend,” even if intended innocently, is an adverse action. Woolf v. Dep’t of
Energy, EEOC Appeal No. 0120083727 (June 4, 2009) (violation found when a labor management
specialist told the complainant, “as a friend,” that her EEO claim would polarize the office).
However, we emphasize that this analysis is appropriate for adverse treatment that is based on a
retaliatory motive. In the instant case, the preponderance of the evidence does not establish that
the alleged harassment was based on a retaliatory motive. Therefore, the AJ correctly considered
whether the alleged harassment was sufficiently severe or pervasive to constitute a hostile work
environment.

Accordingly, we consider whether Complainant established that she was subjected to a hostile
work environment. Here, we find that there is no evident connection between the alleged
harassment and Complainant’s race, sex, age, or prior protected EEO activity. Further, we agree
with the AJ that the instances of alleged harassment, considered together, are insufficiently severe
or pervasive to establish a hostile work environment.2 We note that the AJ specifically found that
S1’s stray use of the term “Sambo” outside of Complainant’s presence was insufficient to
demonstrate a racially hostile work environment, and that C1 testified that once he informed S1 of
the racially insensitive nature of the term, S1 was embarrassed and never used it again. We agree
with the AJ that much of the alleged harassment constitutes the ordinary exercise of supervisory
oversight. Therefore, Complainant has failed to establish that she was subjected to a hostile work
environment based on race, sex, age, and/or reprisal.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final order because no genuine issue of
material fact exists and because the preponderance of the evidence in the record does not establish
that discrimination occurred.

2 We do not find that the AJ inappropriately “fragmented” Complainant’s harassment claim.
Although the AJ analyzed the instances of harassment separately, she properly considered all of
the instances of harassment in assessing whether the alleged harassment was severe or pervasive.
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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which tend to establish
that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or
law; or
2. The appellate decision will have a substantial impact on the policies, practices, or
operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal
Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B
(Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to
reconsider shall be deemed timely filed if it is received by mail within five days of the expiration
of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R.
§ 1614.403(g). The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as
untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your request for reconsideration. The
Commission will consider requests for reconsideration filed after the deadline only in very limited
circumstances. See 29 C.F.R. § 1614.604(c).

COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety
(90) calendar days from the date that you receive this decision. If you file a civil action, you must
name as the defendant in the complaint the person who is the official Agency head or department
head, identifying that person by his or her full name and official title. Failure to do so may result
in the dismissal of your case in court. “Agency” or “department” means the national organization,
and not the local office, facility or department in which you work. If you file a request to reconsider
and also file a civil action, filing a civil action will terminate the administrative processing of
your complaint.

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RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request
permission from the court to proceed with the civil action without paying these fees or costs.
Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the
court to appoint an attorney for you. You must submit the requests for waiver of court costs or
appointment of an attorney directly to the court, not the Commission. The court has the sole
discretion to grant or deny these types of requests. Such requests do not alter the time limits for
filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for
the specific time limits).
FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

November 15, 2018
Date